Gaines v. Brown et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, with Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 09/14/2017. Referred to Judge Ishii; Objections to F&R due by 10/2/2017.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARY LEE GAINES,
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Plaintiff,
v.
E. G. BROWN, et al.,
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Case No. 1:16-cv-01666-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE
Defendants.
(ECF No. 7)
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FOURTEEN (14) DAY DEADLINE
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I.
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Plaintiff Mary Lee Gaines (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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Background
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On June 7, 2017, the Court dismissed the complaint with leave to amend within thirty
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days after service. (ECF No. 7). Plaintiff was expressly warned that if she failed to file a first
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amended complaint in compliance with the Court’s order, this action would be dismissed for
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failure to obey a court order and for failure to state a claim. (Id. at 14.) Thereafter, Plaintiff was
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granted three extensions of time to amend her complaint, with the most recent amended complaint
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due by September 7, 2017. (ECF No. 15.) Plaintiff was expressly warned in each order granting
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an extension of time that failure to comply with the Court’s orders would result in dismissal of
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this action. (ECF Nos. 9, 12, 15.) The deadline for Plaintiff to file her amended complaint has
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passed, and she has not complied with the Court’s orders.
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II.
Discussion
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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
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within the inherent power of the Court.” District courts have the inherent power to control their
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dockets and “[i]n the exercise of that power they may impose sanctions including, where
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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
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(dismissal for failure to comply with court order).
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In determining whether to dismiss an action, the Court must consider several factors:
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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
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Here, the action has been pending since November 2016, and Plaintiff’s first amended
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complaint is overdue. Plaintiff has previously been granted three extensions of time to file her
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amended complaint, but despite the Court’s leniency, she has not yet complied with the Court’s
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June 7, 2017 order. The Court cannot hold this case in abeyance awaiting such compliance by
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Plaintiff. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.
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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs
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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,
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291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab.
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Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
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Finally, the court’s warning to a party that failure to obey the court’s order will result in
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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s June 7, 2017 order expressly
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warned Plaintiff that her failure to comply with that order would result in a dismissal of this
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action, with prejudice, for failure to state a claim and to obey a court order. (ECF No. 7, p. 14).
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Plaintiff also was warned of the potential for dismissal by the Court’s July 6, August 1, and
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August 11 orders granting her motions for extension of time. (ECF Nos. 9, 12, 15). Thus,
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Plaintiff had adequate warning that dismissal could result from her noncompliance.
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Additionally, at this stage in the proceedings there is little available to the Court which
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would constitute a satisfactory lesser sanction while protecting the Court from further
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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this
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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is
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likely to have no effect given that Plaintiff has ceased litigating her case.
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III.
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Accordingly, it is HEREBY RECOMMENDED that:
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1.
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U.S.C. § 1915A;
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2.
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Conclusion and Recommendations
This action be dismissed, with prejudice, for failure to state a claim pursuant to 28
This action be dismissed for the failure to obey the Court’s June 7, 2017 order
(ECF No. 7), and for Plaintiff’s failure to prosecute this action; and
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3.
This dismissal count as a strike against Plaintiff under 28 U.S.C. § 1915(g).
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
September 14, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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